Do as you're told, or stand up for your rights?

Employers tread a fine line between giving staff lawful, reasonable directions and stepping into legal trouble.

By John Wilson

4 September 2018 — 12:04am

It is said that nothing in this world is certain except death and taxes. I'd add a third certainty to this unhappy assembly: that employers will ask their employees to do tasks that the employee does not want to do.

Photo: Andrew Quilty

A common complaint I hear from my clients is that their employer asked them to do something they should not need to do, that the task is "not in my contract", that something is "not my job". Likewise, employers come to me with concerns that a particular employee is not following their directions, or is being obstructive and obstinate.

I'm sympathetic to both perspectives.

As with most things, the answer usually lies somewhere between these two standpoints: employers are entitled to expect their staff to comply with their instructions, and employees are entitled to be given reasonable tasks from their employers.

Employment law has drawn a line in the sand between these two (sometimes, though hopefully not always) competing expectations: employees must comply with all directions from their employer that are lawful and reasonable. The converse is equally true. An employee is not expected to comply with an unlawful or unreasonable direction.

As with so many things in the Australian Public Service, this line in the sand has been incorporated into the Public Service Act through the code of conduct. Section 13(5) of the code provides that an "APS employee must comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction".

The first thing I want to touch on is the distinction between lawfulness and reasonableness. Lawfulness is comparatively easy to describe. If the employer is prevented from giving the direction by a territory, state or federal law, or if the direction requires the employee to contravene territory, state or federal laws, it is an "unlawful" direction.

What is meant by reasonable is somewhat less certain and depends on the surrounding circumstances. For example, it would not be reasonable to give an employee a direction that would counteract an employment right held by that employee. Similarly, it may not be reasonable in the circumstances for an employer to direct their employee to be assessed by a specific medical practitioner (I will discuss this further below).

An employee is not expected to comply with an unlawful or unreasonable direction.

So when is an employment direction lawful and reasonable?

In Griffiths v Rose (2011), it was alleged that a federal public servant, John Frank Lewis Griffiths, had breached section 13(5) of the code of conduct by failing to comply with a lawful and reasonable direction to not use a department-provided laptop to access certain material on the internet, including pornography. The department became aware of the online activities after surveillance software on the device logged suspicious Google searches. At no point was it alleged that Griffiths had accessed pornography anywhere other than at his home and over his private internet network.

Griffiths argued that the direction to not use the departmental laptop to access the material was unlawful because the software used to monitor his activities breached his rights under the International Covenant on Civil and Political Rights (and the associated sections of the Privacy Act). He also argued the direction was unreasonable because it abrogated his common-law rights to privacy.

Justice Nye Perram did not accept these arguments. Though he placed significant weight on the notice given to Griffiths that his activities would be monitored through the software, the more interesting aspect of Perram's decision (for present purposes) was that he held that it was reasonable and lawful for an employer to ensure that its property, here the laptop, was not used for purposes that the employer did not wish it to be used for. This suggests that, at least when it comes to control the employer can exercise over its property, employers have significant discretion to direct their staff to take, or not take, certain actions.

It's worth noting two things before I launch headfirst into discussing Schoeman. First, the case concerned a NSW public servant and was, therefore, heard in the NSW Industrial Relations Commission. Second, this case was (with some success) appealed by the director-general. However, the substantive elements of the case, for our present purposes, were unaffected by the appeal.

In this case, Fiona Schoeman, who was an employee of the NSW courts, had been directed by her employer to be seen by a psychiatrist as part of her ongoing fitness-for-work assessment after a workers' compensation claim. When she refused this direction (on no fewer than three occasions), the director-general instigated a misconduct investigation to determine whether she had breached the code of conduct by refusing to comply with the lawful and reasonable employment directions. This investigation concluded she had breached this requirement and she was sacked.

The problem was that Schoeman had a wrist injury, not a psychiatric one. Consequently, the direction that she be assessed by a psychiatrist was not reasonable and, therefore, she did not breach the code by failing to comply with the directions, given that the directions were not validly given. Commissioner Peter Newall ordered that Schoeman be reinstated.

Newall made one other interesting observation. Because the direction that Schoeman attend a psychiatrist was unreasonable, and public servants are (generally) not authorised to take unreasonable action, the direction to see a psychiatrist was ultra vires and, therefore, was also unlawful.

Of course, whether a particular employment direction is lawful and reasonable depends substantially on the circumstances in each case. If you think your employer is giving you an unreasonable, or even unlawful, direction, you would be well advised to speak with a lawyer. However, what is clear is that, in most circumstances, your employer can direct you to do a task you don't want to do.

John Wilson is the managing legal director of BAL Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague Robert Allen for his help in preparing this article. ballawyers.com.au